dismissed EB-1C Case: Business

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
PUBLIC copy 
l~tentifying data deleted to 
pnmt clearly unwanan@ 
bvasion of personal pivacf 
Office: VERMONT SERVICE CENTER 
 Date: SEP 1 1 2007 
EAC 05 152 5 1448 
PETITION: 
 Immigrant Petition for Alien Worker as a Multinational Executive or Manager Pursuant to 
Section 203(b)(l)(C) of the Immigration and Nationality Act, 8 U.S.C. 3 1153(b)(l)(C) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that orignally decided your case. Any further inquiry must be made to that office. 
Robert w iemann, Chief 
Administrative Appeals Office 
DISCUSSION: The preference visa petition was denied by the Director, Vermont Service Center. The 
matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. 
The petitioner is a New York corporation seeking to employ the beneficiary as its president. Accordingly, the 
petitioner endeavors to classify the beneficiary as an employment-based immigrant pursuant to section 
203(b)(l)(C) of the Immigration and Nationality Act (the Act), 8 U.S.C. 5 1153(b)(l)(C), as a multinational 
executive or manager. The director denied the petition based on three independent grounds of ineligibility: 
1) the petitioner failed to provide sufficient documentation establishing a qualifylng relationship between the 
U.S. entity and the beneficiary's claimed foreign employer; 2) the petitioner failed to establish that the 
beneficiary was employed abroad in a qualifylng managerial or executive capacity; and 3) the petitioner failed 
to establish that it would employ the beneficiary in a managerial or executive capacity. 
On appeal, counsel disputes the director's conclusions and submits a brief in support of his arguments. 
Section 203(b) of the Act states in pertinent part: 
(1) Priority Workers. -- Visas shall first be made available . . . to qualified immigrants who 
are aliens described in any of the following subparagraphs (A) through (C): 
(C) Certain Multinational Executives and Managers. -- An alien is described 
in this subparagraph if the alien, in the 3 years preceding the time of the 
alien's application for classification and admission into the United States 
under this subparagraph, has been employed for at least 1 year by a firm or 
corporation or other legal entity or an affiliate or subsidiary thereof and who 
seeks to enter the United States in order to continue to render services to the 
same employer or to a subsidiary or affiliate thereof in a capacity that is 
managerial or executive. 
The language of the statute is specific in limiting this provision to only those executives and managers who 
have previously worked for a firm, corporation or other legal entity, or an affiliate or subsidiary of that entity, 
and who are coming to the United States to work for the same entity, or its affiIiate or subsidiary. 
A United States employer may file a petition on Form 1-140 for classification of an alien under section 
203(b)(l)(C) of the Act as a multinational executive or manager. No labor certification is required for this 
classification. The prospective employer in the United States must furnish a job offer in the form of a 
statement which indicates that the alien is to be employed in the United States in a managerial or executive 
capacity. Such a statement must clearly describe the duties to be performed by the alien. 
The first issue in this proceeding is whether the petitioner has a qualifylng relationship with the beneficiary's 
claimed employer abroad. 
The regulation at 8 C.F.R. 5 204.5Cj)(2) states in pertinent part: 
AfJiliate means: 
Page 3 
(A) 
 One of two subsidiaries both of whch are owned and controlled by the same parent or 
individual; 
(B) 
 One of two legal entities owned and controlled by the same group of individuals, each 
individual owning and controlling approximately the same share or proportion of each 
entity; 
* * * 
Multinational means that the qualifying entity, or its affiliate, or subsidiary, conducts 
business in two or more countries, one of which is the United States. 
Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or 
indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, 
half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a 50-50 
joint venture and has equal control and veto power over the entity; or owns, directly or 
indirectly, less than half of the entity, but in fact controls the entity. 
In support of the Form 1-140, the petitioner provided a letter dated April 21, 2005 in which it stated that it is 
wholly owned by 
 In support of this claim, the petitioner 
provided a stock certificate showing s owner of 200 shares of the petitioner's stock out of a possible 
200 authorized shares. The petitioner also provided its tax returns for 2001, 2002, and 2003 all identifying 
MIC as the petitioner's sole owner. It is noted that, while the petitioner stated that MIC has subsidiaries in 
Taiwan, Hong Kong, and China, the beneficiary's employer abroad was not specifically identified. 
On March 8,2006 Citizenship and Immigration Services (CIS) issued a request for additional evidence (WE) 
instructing the petitioner to provide evidence of its ownership and further information regarding the 
beneficiary's employment abroad. 
In response, counsel submitted a letter dated May 5, 2006 in which counsel stated that the beneficiary was 
employed abroad as vice president of -1 located in Wenzhou, China. Thus, based on 
counsel's statement, the petitioner's relationship with the beneficiary's foreign employer is that of an affiliate, 
not parentlsubsidiary, as suggested by the supporting statement and documentation submitted with the Form 
1-140. In support of the beneficiary's claimed employment abroad, the petitioner provided a letter dated 
December 23, 1996 from the New York City Commissioner for International Business and United Nations. 
The letter was addressed to the beneficiary and referred to her as vice president of in 
Wenzhou, China. 
On August 24,2006, the director issued a decision denying the petition. The director found that the petitioner 
failed to provide documentation establishing common ownership and control between the U.S. entity and the 
beneficiary's claimed employer. The director also noted that the petitioner failed to submit documentation 
establishing the duration of the beneficiary's foreign employment. 
On appeal, while counsel clearly acknowledges the director's adverse decision, he fails to address the finding 
specifically concerning the qualifying relationship between the U.S. petitioner and the beneficiary's foreign 
employer. 
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The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifylng relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. In the present matter while the petitioner has 
provided documentation indicating a parent/subsidiary relationship between and the U.S. entity, the 
latter is not the beneficiary's claimed foreign employer. Rather, the beneficiary's claimed foreign employer is 
an entity located in China, which, like the petitioner, is also purportedly owned by However, going on 
record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof 
in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft 
of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). As the petitioner has not provided evidence 
documenting the beneficiary's foreign employment or MIC's ownership of the claimed foreign employer, it 
has failed to establish the existence of a qualifylng relationship as required by 8 C.F.R. 3 204.5(j)(3)(i)(C). 
The two remaining issues in this proceeding call for a discussion of the beneficiary's employment abroad as 
well as an analysis of the beneficiary's proposed job duties in her position with the U.S. petitioner. 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 3 1 101(a)(44)(A), provides: 
The term "managerial capacity" means an assignment within an organization in which the 
employee primarily-- 
(i) manages the organization, or a department, subdivision, function, or 
component of the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or 
managerial employees, or manages an essential function within the 
organization, or a department or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the 
authority to hire and fire or recommend those as well as other personnel 
actions (such as promotion and leave authorization), or if no other employee 
is directly supervised, functions at a senior level within the organizational 
hierarchy or with respect to the function managed; and 
(iv) 
 exercises discretion over the day-to-day operations of the activity or function 
for which the employee has authority. A first-line supervisor is not 
considered to be acting in a managerial capacity merely by virtue of the 
supervisor's supervisory duties unless the employees supervised are 
professional. 
Section 101(a)(44)(B) of the Act, 8 U.S.C. 3 1101(a)(44)(B), provides: 
The term "executive capacity" means an assignment within an organization in which the 
employee primarily-- 
Page 5 
(i) 
 directs the management of the organization or a major component or function 
of the organization; 
(ii) 
 establishes the goals and policies of the organization, component, or 
function; 
(iii) 
 exercises wide latitude in discretionary decision-malung; and 
(iv) 
 receives only general supervision or direction from higher level executives, 
the board of directors, or stockholders of the organization. 
In the petitioner's support letter dated April 21,2005, the petitioner made a brief reference to the beneficiary's 
foreign employment. However, the petitioner did not provide any information regarding the beneficiary's 
duties during her employment abroad, nor was any documentation offered to support the claim that the 
beneficiary was employed abroad by a qualikng entity during the requisite time period. The petitioner did, 
however, provide the following list breaking down the beneficiary's proposed duties and responsibilities: 
a) Set [gleneral [gloals and [olbjectives for the company[;] b) [alpprove company rules and 
regulations[;] c) [rleview and approve [elxpenses Pludget and asset purchase[s], [rleview 
[flinancial statements; d) [fJormulate company structure, [alpprove hiring and firing of staff 
at [a] manager[ial] or higher level[;] e) [cloordinate with executives of other companies or 
participate at important trade conferences[;] f) assume full profit and loss responsibilities for 
the U[.]S[.] company and report to the chairman of the board of the parent company in China. 
Utilize the expertise of outside expert such as [a] financial consultant. About 7 hours for each 
itemized duties. Work [is] done through the assistance of [a] senior assistant/manager. 
The petitioner also provided the following hourly breakdown of the beneficiary's typical daily activities: 
8:30-9:00 
 Check calendar & [tlo-[d]o list in Outlook while downloading e-mails. . . . 
Talk to [an] assistant on [sic] the appointments and meetings for the day, scan 
the Inbox to identifL for [sic] important and high priority e-mails, make quick 
notes and forward to the relevant staff for processing or reply by herself if the 
incoming mail was from the high level executive of key accounts, make a few 
internal phone call[s,] if necessary[,] to check project status or clarity [sic] 
some issues. 
9:OO-10:OO 
Review all the documents prepared by [the] manager and assistant regarding 
important data, results and progress in different areas of the company business. 
10:OO-12:OO Discuss on the phone or [in a] meeting with [the] manager regarding different 
issues and make the decisions. 
12:OO-13:30 Lunch [blreak. 
Page 6 
13:30-14:30 Read trade publications or business magazines to [sic] such as [the Wlall 
[Sltreet Journal [to] be aware of the up-date[d] information and business 
trend[s]. 
14:30-15:OO Communicate with trade association representative[s], high ranking bankers as 
well as business partners such as executives of other companies. 
15:OO-16:OO Contact or call our business consultant for business developing strategy[.] 
16:OO-17:OO Paperwork, formulating internal rules, adjusting strategies. 
17:OO-17:30 Review [the] calendar and [tlo-[d]o list and make adjustments, then schedules 
for the next day. 
2 1 :00-21:30 Contact [the] China [clorporate parent if necessary. 
In CIS'S March 8, 2006 RFE, the petitioner was instructed to provide the following documentation to assist 
the Agency in assessing the petitioner's eligibility: 1) evidence of the petitioner's staffing, including the 
number of employees and their respective positions; 2) a complete hourly breakdown for each of the 
petitioner's employees, including one for the beneficiary; and 3) evidence that the beneficiary was employed 
by a qualifytng organization during the requisite time period in a managerial or executive capacity. 
In response, the petitioner resubmitted position descriptions for the beneficiary and other staff members. The 
AAO notes that the petitioner's initial submissions included a brief statement of the beneficiary's 
responsibilities as well as those of other staff members. No additional information was provided with regard 
to the beneficiary's job duties. 
Accordingly, the director based the denial, in part, on the conclusion that the petitioner failed to establish that 
the beneficiary was employed abroad with a qualifylng entity in a qualifying capacity or that she would be 
employed in the United States in a primarily qualifylng managerial or executive capacity. With regard to the 
petitioning entity, the director stated, "[A111 the employees[,]with the exception of two sales people[,] are 
stated to be supervisory, analytical, or support." The director did not clarify, however, what is meant by 
"analytical" or "support." Moreover, as counsel properly pointed out on appeal, upon reviewing the brief job 
duties of the petitioner's staff, it appears that several individuals were charged with what may be deemed as 
operational tasks. As such, the director's comment on this issue, without further explanation, appears to be 
unfounded. Despite the director's flawed analysis, the petitioner has not established that the beneficiary was 
employed abroad and would be employed in the United States in a qualifying managerial or executive 
capacity. 
On appeal, counsel failed to address the director's adverse finding regarding the beneficiary's foreign 
employment. As the petitioner did not previously provide sufficient evidence documenting the employment 
with a qualifying entity and failed to provide information establishing that the foreign employment was within 
a qualifying capacity, the director properly determined that the petitioner failed to establish the beneficiary's 
foreign employment in a qualifytng capacity. 
Page 7 
With regard to the beneficiary's proposed employment, counsel discusses the size of the petitioner's business 
premises and the yearly costs of renting such a substantial store fi-ont and warehouse space in an effort to 
convey the level of business conducted by the petitioner. Counsel further disputes the director's observations 
regarding the petitioner's staffing and asserts that its use of part-time help does not compromise the 
petitioner's ability to employ the beneficiary in a primarily managerial or executive capacity. 
Counsel's arguments have been considered. However, in examining the executive or managerial capacity of 
the beneficiary, CIS will look first to the petitioner's description of the job duties. See 8 C.F.R. 5 204.56)(5). 
Thus, regardless of the size of the petitioner's business premises or the volume of business it conducts, the 
petitioner must provide a detailed account of the beneficiary's daily tasks explaining how the beneficiary will 
spend her time. As previously stated, the petitioner must establish that the beneficiary's time would be 
primarily spent performing duties of a qualifymg managerial or executive nature. See sections 101(a)(44)(A) 
and (l3) of the Act, respectively. In the present matter, the petitioner provided an hourly breakdown of the 
beneficiary's typical day of work. However, the breakdown does not establish that the beneficiary would 
primarily perform qualifylng tasks. Specifically, the petitioner stated that the beneficiary would spend two 
hours meeting with the manager regarding different issues and making decisions. The petitioner did not 
provide any information as to the types of issues and decisions that would consume such a significant portion 
of the beneficiary's day. The petitioner also stated that approximately 30 minutes would be spent daily 
communicating with trade association representatives, bankers, and business associates. However, the 
petitioner did not specify the subject matter of these phone calls. Although the petitioner claims that the 
beneficiary would spend one hour daily calling a business consultant and others to develop business strategy, 
there is no evidence that a consultant has been hired; nor has the petitioner specified what is involved in 
"business developing strategy." Lastly, the petitioner indicated that one hour would be spent daily performing 
paperwork, formulating rules, and adjusting strategies. However, the petitioner did not specifjr the nature of 
the paperwork or fully describe how or on what basis the beneficiary would formulate rules and adjust her 
strategies. 
The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. 
Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 905 F.2d 41 (2d. Cir. 1990). In the present matter, the hourly 
breakdown discussed above does not contain information specific enough to determine what duties the 
beneficiary would primarily perform on a daily basis. 
Therefore, based on the evidence of record, the AAO cannot conclude that the beneficiary was employed 
abroad and would be employed in the United States in a qualifylng managerial or executive capacity. 
When the AAO denies a petition on multiple alternative grounds, a plaintiff can succeed on a challenge only 
if it is shown that the AAO abused its discretion with respect to all of the AAO's enumerated grounds. See 
Spencer Enterprises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 2001), affd, 345 F.3d 683 
(9th Cir. 2003); see also Dor v. INS, 891 F.2d 997, 1002 n. 9 (2d Cir. 1989)(noting that the AAO reviews 
appeals on a de novo basis). 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for denial. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 1361. The petitioner has not 
sustained that burden. 
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ORDER: 
 The appeal is dismissed.